711.572/99
The Department of State to the Norwegian Legation
Memorandum
Before proceeding to the ratification of the treaty of friendship, commerce and consular rights between the United States and Norway, signed June 5, 1928,33 it seems necessary to consider the effect its ratification would have upon the rights of commercial men of either country to enter and reside for protracted periods in the other for the purpose of carrying on commerce between the two countries. This is especially necessary with regard to Norwegian commercial men coming to the United States to reside, in view of the provision of subsection (6) of Section 3 of the Immigration Act of 1924.34
Section 3 of the Immigration Act of 1924 classifies as immigrants all aliens “departing from any place outside the United States destined for the United States, except” aliens of six specified classes the last of which is
“(6) an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation.”
The statutory provision just quoted was adopted for the purpose of preserving the rights of aliens to enter, sojourn and reside in the United States for commercial purposes under the provisions of the then existing commercial treaties, since it was believed that such rights would not be preserved by the provision of subsection (2) of Section 3, which classified as a non-immigrant “an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure”. It was believed that aliens coming to the United States to remain indefinitely in this country as representatives of foreign commercial concerns could not be regarded as residing “temporarily” in the United States within the meaning ordinarily attached to that word.
Article I of the Treaty of Commerce and Navigation of 1827 of the United States with Norway and Sweden, which is still in effect as between the United States and Norway, reads as follows:
“The citizens and subjects of each of the two high contracting parties may, with all security for their persons, vessels, and cargoes, freely enter the ports, places, and rivers of the territories of the ether, wherever foreign commerce is permitted. They shall be at liberty to sojourn and reside in all parts whatsoever of said territories; to rent and occupy houses and warehouses for their commerce; and they shall enjoy, generally, the most entire security and protection [Page 645] in their mercantile transactions, on condition of their submitting to the laws and ordinances of their respective countries.”
The first paragraph of Article I of the treaty of friendship, commerce and consular rights between the United States and Norway, signed June 5, 1928, reads as follows:
“The nationals of each of the High Contracting Parties shall be permitted to enter, travel and reside in the territories of the other; to exercise liberty of conscience and freedom of worship; to engage in professional, scientific, religious, philanthropic, manufacturing and commercial work of every kind without interference; to carry on every form of commercial activity which is not forbidden by the local law; to employ agents of their choice, and generally to do anything incidental to or necessary for the enjoyment of any of the foregoing privileges upon the same terms as nationals of the State of residence or as nationals of the nation hereafter to be most favored by it, submitting themselves to all local laws and regulations duly established.”
Article XXIX of the new treaty contains the following paragraph:
“The present Treaty shall, from the date of the exchange of ratifications be deemed to supplant, as between the United States and Norway, the Treaty of Commerce and Navigation concluded by the United States and the King of Norway and Sweden on July 4, 1827.”
As the new treaty was not “existing” on the date of the passage of the Immigration Act of 1924, the provisions of Section 3 (6) of the latter will not be applicable to it. The Department has recommended to the appropriate Committees of Congress an amendment of Section 3 (6) of the Act which would make it applicable to persons entering the United States under commercial treaties which have been or shall be concluded after May 26, 1924, as well as to persons entering the United States under the provisions of commercial treaties concluded before that date, but no assurances can be given that such an amendment will be made in the immediate or near future.
For the reasons mentioned, in order to make it possible, after the ratification of the new treaty, for Norwegian nationals to enter the United States and remain in this country for such periods of time as the exigencies of the trade and commerce between the two countries in which they may be engaged may require, it will be necessary either to amend the treaty signed June 5, 1928, or to enter into a supplementary agreement under which the provisions of the treaty of 1827, concerning entry and residence for commercial purposes, will be kept in effect, notwithstanding the termination of the other provisions of the same treaty. It is suggested that the simpler way to accomplish this end would be by concluding an additional Article [Page 646] to be made a part of the treaty signed June 5, 1928, and ratified at the time that treaty is ratified. A tentative draft of such an Article is annexed hereto.35